PD-0197-15

IN THE COURT OF CRIMINAL APPEALS

AUSTIN, TEXAS

JESSICA NICOLE NANCE, APPELLANT

V.

THE STATE OF TEXAS, APPELLEE

MOTION FOR REHEARING IN CAUSE NUMBER CR 1101695

IN THE COUNTY COURT AT LAW NO. 1

OF HUNT COUNTY, TEXAS

MOTION FOR REHEARING

TO THE HONORABLE JUSTICES OF THE COURT OF APPEALS:

Comes Now the Appellant and submits this Motion for Rehearing pursuant

to the provisions ofthe Texas Rules ofAppellate Procedure in Support of her

request for the judgment of conviction to be overturned in Cause CR 1101695.

RECEIVED IN

COURT OFCRIMINAL APPEALS

MAY 29 2015
IDENTITY OF PARTIES AND COUNSEL

Pursuant to Texas Rule of Appellate Procedure 38.1, the undersigned counsel of record certifies that the

following persons have an interest in the outcome of this case. These representations are made so that

the Justices of this Honorable Court can evaluate whether they are disqualified to serve or should recuse

themselves from participation in the decision of this case.

APPELLATE:

Jessica Nicole Nance

PO. Box 211362

Bedford, Texas 76095

APPELLATE ATTORNEY:

Jason A. Duff

2615 Lee Street

P.O. Box 11 Greenville, Texas 75403

Appellee:

The State of Texas by and through

Joel D. Littlefield

Jeffery Kovach

Hunt County Attorney

4th Floor Hunt County Courthouse

2500 Lee Street

Greenville, Texas 75401
TABLE OF CONTENTS

Identity of the Parties and Counsel

Table of Contents

Index of Authorities

Statement of the Case

Issues Presented

Statement of the Facts

Summary of the Argument

Prayer for Relief

Certificate of compliance of typeface and word count

Certificate of Service
INDEX OF AUTHORITIES

CASES

Brooks v. State, 323 S.W.3d 893

(Tex.Crim.App. 2010)

Clayton v. State, 235 S.W.3d 772

(Tex.Crim.App. 2007)

Gilliand v. State, 2011WL 3862861

(Tex.App.—Texarkana 2011)

Hartsfield v. State, 305 S.W.3d 859

(Tex.App.—Texarkana 2010)

Hooper v. State, 214 S.W.3d 9

(Tex.App.—Texarkana 2007)

Jackson v. Virginia, 433 U.S. 307 (1979)

Johnson v. State, 517 S.W.2d 536

(Tex.Crim.App.1975)

Gonzales v. State, 369 S.W.3d 851,854 (Tex. Crim. App. 2012)

Haynes v. State, 475S.W.2d 739, 741 (Tex. Crim. App. 1971)

Kentucky v. King, 131 S.Ct. 1849,1856 (2011)

Mincey v. Arizona, 437 U.S. 385, 390 (1978) (quoting Katz v. United States, 389

U.S. 347, 357 (1967))
Gonzales, 369 S.W.3d at 854

Bray v. State, 597 S.W.2d 763, 765 n.l(Tex. Crim. App. [Panel Op.] 1980) (quoting

McDonald v. United States, 335 U.S. 451,455 (1948))

Johnson v. United States, 333 U.S. 10,17(1948)

Jones v. United States, 357 U.S. 493,499 (1958).

McGee v. State, 105 S.W.3d 609, 615 (Tex. Crim. App. 2003).

Hudson v. State, 588 S.W.2d 348, 351 (Tex. Crim. App. 1979) (quoting United

States v. Chadwick, 433 U.S. 1, 9(1977), abrogated on other grounds by California

v. Acevedo, 500 U.S. 565,568-80 (1991) (internal quotation marks omitted)).

United States v. Martinez-Fuerte, 428 U.S. 543, 565 (1976); see also Beck v. Ohio,

379 U.S. 89, 96 (1964)

Clay v. State, 391 S.W.3d 94,100 n.21 (Tex. Crim. App. 2013)

(quoting Wayne R. LaFave, 2Search and Seizure: ATreatise on the Fourth

Amendment § 4.3(b), at 511 (4th ed. 2004))).

State v. Robinson, 334 S.W.3d 776, 778-79 (Tex. Crim. App. 2011) (footnotes

omitted)

Robinson, 334 S.W.3d at 780 (Cochran, J., concurring); Ford v. State, 158 S.W.3d

488, 492 (Tex. Crim. App. 2005).

Robinson, 334 S.W.3d at 779; Amador v. State, 221 S.W.3d 666, 672-73 (Tex.

Crim. App. 2007).

Bray, 597 S.W.2d at 765 n.l (quoting McDonald, 335 U.S. at 456).

Gutierrez v. State, 221 S.W.3d 680, 685 (Tex. Crim. App. 2007).

Crane v. State, 786 S.W.2d 338, 346 (Tex. Crim. App. 1990)

STATUTES and RULES
Texas Penal Code 49.04

Rule 44.2(a) of the Texas Rules of Appellate Procedure

See TEX. R. APP. P. 44.2(a)

Hernandez v. State, 60S.W.3d 106 (Tex. Crim. App. 2001)

Snowden v. State, 353 S.W.3d 815, 821 (Tex. Crim. App. 2011).

End Notes:

1Adams, R., &Victor, M. (1993). Principles of Neurology, Sth edition. McGraw-Hill, Inc.: New York

2 Burns, M.,& Anderson, H.( 1995). A Coloradovalidation study of the standardized field sobriety

(SFST) battery. Final Report. Colorado Department of Transportation.

3 Burns, At, & Dioquino, T.( 1997).A Florida validation study of standardized field sobriety test

(S.F.S.T. battery. Florida Department of Transportation.

4 De Myer, W. Neuroanatomy. Williams &Wilkins, Baltimore.

5 DWIdetection and standardized field sobriety testing Student manual.(1995). NHTSA, U.S.

Department of Transportation.

6 DWI detection and standardized field sobriety testing Instructor manual. (1995). NHTSA, U.S.

Department of Transportation.

7 Elliot. C, & Murray. A. (1998). Repeatability of body sway measurements; day-to-day variation

measured by)sway magnetometry. Physiol. Meas.19,159-164.

8 Lee, D..& Lishman, J. (1975). Vision -the most efficient source of proprioceptive information for

balance control. Symposium international de posturegraphie, 83-93.

9 Mills, K., &Bisgrove, E. (1983). Body sway and divided attention performance under the

influence of alcohol: Dose-response differences between males and females. Alcohol Clincial and

Experimental Research, 7(4), 393-397.

10 Nardone, A.,Tarantola, J., Giordano, A., &Schieppati, M. (1997). Fatigue effects on body balance.

Electroencephalography and clinical Neurophysiology, 105,309-320.
STATEMENT OF THE CASE

This is an appeal ofthe judgment and sentence in acriminal case for the County Court atLaw

Number 1in Hunt County, Texas. Appellant Plead Guilty to the crime of Driving while Intoxicated

Second. (RR Vol. 3p.8) Appellant filed in the trial court an election to punishment to be made by the

trial court on August 12th, 2013. The court ordered apre-sentence investigation. Appellant was

assessed asentence of imprisonment for Two Hundred Fifty (250) days in the Hunt County Jail, $0.00

fine, and $433.00 in court costs on October 14th, 2013 by the trial court. Motion for New Trial was

timely filed on November 4th, 2013 in the trial court and has yet to be heard. The court reporter's

record was filed on April 26th, 2013. Appeal was affirmed on November 10th, 2014. Motion for

rehearing was filed on November 12th, 2014. Motion was granted on November 25th, 2014. Motion for

rehearing was overruled on 1/6/15. Petition for discretionary review was filed on 4/17/15. PDR was

refused on 5/13/2015.
ISSUES PRESENTED

Point of Error One:

Defendant's Fourth Amendment rights were violated when theofficers failed to obtain a

search warrant.

Point of Error Two:

Trial court erred in the admissibility, utilization and refutation oftheState's evidence

concerning field-sobriety test.

Point of error Three:

Trial court erred in allowing Trooper Goodwin to testify that there is a certain level of

intoxication that can be determined bythe HGN .
Statement of the facts

Appellant pled guiltyto Driving While Intoxicated, Second . (RR Vol. 3 p.8). The trial

court admonished Appellant of the charge and the range of punishment. (RR Vol. 3 p.8-15).The

trial court then admonished the Appellant that the State was seeking to enhance his

punishment range from a Class B misdemeanor to a Class A misdemeanor. (RR Vol. 3 p. 8-15).

The court informed Appellant that she had the rightto have a presentence investigation and

ordered it done. (CR Vol. 1 p. 195). Duringthe sentencing hearing the State moved to admit

Exhibits 1-6 which included the roadside videos, intoxilizer videos and her test results and

records obtained from criminal records from Dallas County. Without objection from the

Defense the trial court admitted them. (RR Vol. 3 p. 25). Both sides presented arguments and

the Court came back with a sentence of two hundred and fifty days in jail. (RR Vol. 5p. 113-125).
SUMMARY OF THE ARGUMENT

Jessica Nicole Nance appeals from herconviction, on an open plea ofguilty, ofdriving

while Intoxicated (DWI) second offense. Following a hearing on punishment, the trial court

sentenced Nance to 250daysinjail. Nance's appointed appellant counsel filed anAnders brief

in the matter detailing the procedural history ofthe case, summarizing and analyzing thetrial

evidence, and stating that he found no meritorious issues to raise on appeal. Nance availed

herselfofthe opportunity to file a pro se response. Nance contendsthat she received

ineffective assistance ofcounsel with respect to each ofthe following issues: (1) Defendant's

Fourth Amendment rights were violatedwhen the officersfailed to obtain a search warrant.

(2) Trial court erred In the admissibility, utilization and refutation of the State's evidence

concerning field-sobriety test.(3) Trial court erred in allowing Trooper Goodwin to testify that

there isacertain level of intoxication that can bedetermined bythe HGN .